Hermès Wins Lawsuit Against Artist Over ‘MetaBirkins’ NFTs – ARTnews.com

Courtesy of the artist

One of the first major NFT-related lawsuits heard in the US culminated in a decisive loss for an artist as luxury brand Hermès prevailed.

Hermès had sued artist Mason Rothschild, whose “MetaBirkin’s” NFT project, the company claimed, deliberately sought to dilute the luxury brand’s trademark. In the Southern District Court of New York today, a jury sided with Hermès, saying Rothschild’s NFTs failed a test that would allow them to be considered art.

The company is now set to be awarded $133,000 in damages.

“MetaBirkins” was an online art project in which Rothschild played on Hermès’ famous Birkin bags and their loyal cult following. His was covered in fake fur. Speaking of the Birkin bags sold by Hermès, he said Yahoo! Finance that he saw the project as “an experiment to see if I could create the same kind of illusion that it has in real life as a digital commodity.”

A single NFT from the project was priced by Rothschild at $125, and the artist estimated that he earned around $125,000 from the series. In total, “MetaBirkins” brought in an estimated $1.1 million, according to Hermès.

In 2021, not long after the project was unveiled on a dedicated website, Hermès Rothschild sent a cease and desist letter. “I don’t want to apologize for making it,” Rothschild replied, writing that the piece was “a commentary on fashion’s history of animal cruelty.”

“Art is art,” Rothschild said at the time. Hermès did not see it this way and filed a lawsuit against him in January 2022.

To decide the case, Judge Jed S. Rakoff required jurors to apply a test that would determine whether or not Rothschild’s NFTs were artistic expressions. The jurors ultimately said that these NFTs failed the test, meaning they were not art and they could have succeeded in obscuring some users’ understanding that MetaBirkins were not Hermès products.

Signs that the trial may be headed this way came earlier this month, when art critic Blake Gopnik – who wrote a biography of Andy Warhol, another artist who merged art and commerce – was barred from testifying as an expert witness.

What this means for other NFT projects going forward remains an open question, although Rothschild’s legal team presented the case as a potentially serious one for artists. One of his lawyers said so New York Times, “Great day for big brands. Terrible day for artists and the First Amendment.”

A representative for Hermès did not immediately respond to a request for comment.

The case is loosely reminiscent of another NFT-related one which is being processed. This pits artist Ryder Ripps against Yuga Labs, producer of the popular Bored Ape Yacht Club series, who claimed that Ripps infringed copyright by, in his words, “appropriating” BAYC images for one of his own NFT projects.